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EXPERIMENTS IN GOVERNMENT 

AND THE ESSENTIALS OF 

THE CONSTITUTION 

THE STAFFORD LITTLE LECTURES 
FOR 1913 



EXPERIMENTS IN GOVERNMENT 

AND THE ESSENTIALS OF 

THE CONSTITUTION 



BY 

ELIHU ROOT 



PRINCETON UNIVERSITY PRESS 
PRINCETON 

LONDON: HENRY FROWDE 
OXFORD UNIVERSITY PRESS 

1913 



^1, 






Copyright, 1913, by 
Princeton University Press 

Published June, 1913 




« /. ' '■ 



©CI.A347889 



PREFACE 

The familiar saying that nothing is settled 
until it is settled right expresses' only a half 
truth. Questions of general and permanent 
importance are seldom finally settled. A very 
wise man has said that ''short of the multipli- 
cation table there is no truth and no fact which 
must not be proved over again as if it had 
never been proved, from time to time." Con- 
ceptions of social rights and obligations and 
the institutions based upon them continue un- 
questioned for long periods as postulates in all 
discussions upon questions of government. 
Whatever conduct conforms to them is as- 
sumed to be right. Whatever is at variance 
with them is assumed to be wrong. Then a 
time comes when, with apparent suddenness, 
the ground of discussion shifts and the postu- 
lates are denied. They cease to be accepted 



iv PREFACE 

without proof and the whole controversy in 
which they were originally established is fought 
over again. 

The people of the United States appear now 
to have entered upon such a period of re- 
examination of their system of government. 
Not only are political parties denouncing old 
abuses and demanding new laws, but essential 
principles embodied in the Federal Constitution 
of 1787, and long followed in the constitutions 
of all the states, are questioned and denied. 
The wisdom of the founders of the Republic 
is disputed and the political ideas which they 
repudiated are urged for approval. 

I wish in these lectures to present some ob- 
servations which may have a useful application 
in the course of this process. 



I 

EXPERIMENTS 



EXPERIMENTS 

There are two separate processes going on 
among the civihzed nations at the present time. 
One is an assault by socialism against the indi- 
vidualism which underlies the social system of 
western civilization. The other is an assault 
against existing institutions upon the ground 
that they do not adequately protect and develop 
the existing social order. It is of this latter 
process in our own country that I wish to 
speak, and I assume an agreement, that the 
right of individual liberty and the inseparable 
right of private property which lie at the- 
foundation of our modern civilization ought 
to be maintained. 

The conditions of life in America have 
changed very much since the Constitution of 
the United States was adopted. In 1787 each 
state entering into the Federal Union had pre- 



4 EXPERIMENTS AND ESSENTIALS 

served the separate organic life of the original 
colony. Each had its center of social and busi- 
ness and political life. Each was separated 
from the others by the barriers of slow and 
difficult communication. In a vast territory, 
without railroads or steamships or telegraph or 
telephone, each community lived within itself. 

Now, there has been a general social and in- 
dustrial rearrangement. Production and com- 
merce pay no attention to state lines. The life 
of the country is no longer grouped about state 
capitals, but about the great centers of conti- 
mental production and trade. The organic 
growth which must ultimately determine the 
form of institutions has been away from the 
mere union of states towards the union of in- 
dividuals in the relation of national citizenship. 

The same causes have greatly reduced the 
independence of personal and family life. In 
the eighteenth century life was simple. The 
producer and consumer were near together and 
could find each other. Every one who had an 
equivalent to give in property or service could 



EXPERIMENTS 5 

readily secure the support of himself and his 
family without asking anything from govern- 
ment except the preservation of order. To-day 
almost all Americans are dependent upon the 
action of a great number of other persons 
mostly unknown. About half of our people 
are crowded into the cities and large towns. 
Their food, clothes, fuel, light, water — all come 
from distant sources, of which they are in the 
main ignorant, through a vast, complicated ma- 
chinery of production and distribution with 
which they have little direct relation. If any- 
thing occurs to interfere with the working of 
the machinery, the consumer is individually 
helpless. To be certain that he and his family 
may continue to live he must seek the power 
of combination with others, and in the end he 
inevitably calls upon that great combination of 
all citizens which we call government to do 
something more than merely keep the peace — 
to regulate the machinery of production and 
distribution and safeguard it from interference 
so that it shall continue to work. 



6 EXPERIMENTS AND ESSENTIALS 

A similar change has taken place in the con- 
ditions under which a great part of our people 
engage in the industries by which they get their 
living. Under comparatively simple industrial 
conditions the relation between employer and 
employee was mainly a relation of individual 
to individual, with individual freedom of con- 
tract and freedom of opportunity essential to 
equality in the commerce of life. Now, in the 
great manufacturing, mining and transporta- 
tion industries of the country, instead of the 
free give and take of individual contract there 
is substituted a vast system of collective bar- 
gaining between great masses of men organized 
and acting through their representatives, or 
the individual on the one side accepts what he 
can get from superior power on the other. In 
the movement of these mighty forces of or- 
ganization the individual laborer, the individ- 
ual stockholder, the individual consumer, is 
helpless. 

There has been another change of conditions 
through the development of political organiza- 



EXPERIMENTS 7 

tion. The theory of poHtical activity which 
had its origin approximately in the adminis- 
tration of President Jackson, and which is 
characterized by Marcy's declaration that "to 
the victors belong the spoils," tended to make 
the possession of office the primary and all- 
absorbing purpose of political conflict. A 
complicated system of party organization and 
representation grew up under which a disci- 
plined body of party workers in each state sup- 
ported each other, controlled the machinery of 
nomination, and thus controlled nominations. 
The members of state legislatures and other 
officers, when elected, felt a more acute respon- 
sibility to the organization which could control 
their renomination than to the electors, and 
therefore became accustomed to shape their 
conduct according to the wishes of the nomi- 
nating organization. Accordingly the real 
power of government came to be vested to a 
high degree in these unofficial political organi- 
zations, and where there was a strong man at 
the head of an organization his control came to 



8 EXPERIMENTS AND ESSENTIALS 

be something very closely approaching dictator- 
ship. Another feature of this system aggra- 
vated its evils. As population grew, political 
campaigns became more expensive. At the 
same time, as wealth grew, corporations for 
production and transportation increased in 
capital and extent of operations and became 
more dependent upon the protection or toler- 
ation of government. They found a ready 
means to secure this by contributing heavily 
to the campaign funds of political organiza- 
tions, and therefore their influence played a 
large part in determining who should be nomi- 
nated and elected to office. So that in many 
states political organizations controlled the 
operations of government, in accordance with 
the wishes of the managers of the great 
corporations. Under these circumstances our 
governmental institutions were not working as 
they were intended to work, and a desire to 
break up and get away from this extra consti- 
tutional method of controlling our constitu- 
tional government has caused a great part of 



EXPERIMENTS 9 

the new political methods of the last few years. 
It is manifest that the laws which were en- 
tirely adequate under the conditions of a cen- 
tury ago to secure individual and public welfare 
must be in many respects inadequate to ac- 
complish the same results under all these new 
conditions; and our people are now engaged in 
the difficult but imperative duty of adapting 
their laws to the life of to-day. The changes 
in conditions have come very rapidly and a 
good deal of experiment will be necessary to 
find out just what government can do and ought 
to do to meet them. 

The process of devising and trying new 
laws to meet new conditions naturally leads to 
the question whether we need not merely to 
make new laws but also to modify the prin- 
ciples upon which our government is based 
and the institutions of government designed for 
the application of those principles to the affairs 
of life. Upon this question it is of the utmost 
importance that we proceed with considerate 
wisdom. 



10 EXPERIMENTS AND ESSENTIALS 

By institutions of government I mean the 
established rule or order of action through 
which the sovereign (in our case the sovereign 
people) attains the ends of government. The 
governmental institutions of Great Britain have 
been established by the growth through 
many centuries of a great body of accepted 
rules and customs which, taken together, are 
called the British Constitution. In this coun- 
try we have set forth in the Declaration of In- 
dependence the principles which we consider to 
lie at the basis of civil society ''that all men are 
created equal ; that they are endowed, by their 
Creator, with certain unalienable rights ; that 
among these are life, liberty, and the pursuit of 
happiness. That to secure these rights, gov- 
ernments are instituted among men, deriving 
their just powers from the consent of the 
governed." 

In our Federal and State Constitutions we 
have established the institutions through which 
these rights are to be secured. We have de- 
clared what officers shall make the laws, what 



EXPERIMENTS 1 1 

officers shall execute them, what officers shall 
sit in judgment upon claims of right under 
them. We have prescribed how these officers 
shall be selected and the tenure by which they 
shall hold their offices. We have limited them 
in the powers which they are to exercise, and, 
where it has been deemed necessary, we have 
imposed specific duties upon them. The body 
of rules thus prescribed constitute the govern- 
mental institutions of the United States. 

When proposals are made to change these 
institutions there are certain general consider- 
ations which should be observed. 

The first consideration is that free govern- 
ment is impossible except through prescribed 
and established governmental institutions, 
which work out the ends of government 
through many separate human agents, each do- 
ing his part in obedience to law. Popular will 
cannot execute itself directly except through a 
mob. Popular will cannot get itself executed 
through an irresponsible executive, for that is 
simple autocracy. An executive limited only 



12 EXPERIMENTS AND ESSENTIALS 

by the direct expression of popular will cannot 
be held to responsibility against his will, be- 
cause, having possession of all the powers of 
government, he can prevent any true, free, and 
general expression adverse to himself, and un- 
less he yields voluntarily he can be overturned 
only by a revolution. The familiar Spanish- 
American dictatorships are illustrations of this. 
A dictator once established by what is or is 
alleged to be public choice never permits an ex- 
pression of public will which will displace him, 
and he goes out only through a new revolution 
because he alone controls the machinery 
through which he could be displaced peaceably. 
A system with a plebiscite at one end and 
Louis Napoleon at the other could not give 
France free government ; and it was only after 
the humiliation of defeat in a great war and 
the horrors of the Commune that the French 
people were able to establish a government that 
would really execute their will through care- 
fully devised institutions in which they gave 
their chief executive very little power indeed. 



EXPERIMENTS 13 

We should, therefore, reject every proposal 
which involves the idea that the people can rule 
merely by voting, or merely by voting and hav- 
ing one man or group of men to execute their 
will. 

A second consideration is that in estimating 
the value of any system of governmental in- 
stitutions due regard must be had to the true 
functions of government and to the limitations 
imposed by nature upon what it is possible for 
government to accomplish. We all know of 
course that we cannot abolish all the evils in 
this world by statute or by the enforcement of 
statutes, nor can we prevent the inexorable law 
of nature which decrees that suffering shall 
follow vice, and all the evil passions and folly 
of mankind. Law cannot give to depravity the 
rewards of virtue, to indolence the rewards of 
industry, to indifference the rewards of am- 
bition, or to ignorance the rewards of learning. 
The utmost that government can do is measur- / 
ably to protect men, not against the wrong they 
do themselves but against wrong done by oth- - 



14 



EXPERIMENTS AND ESSENTIALS 



ers and to promote the long, slow process of 
educating mind and character to a better 
knowledge and nobler standards of life and 
conduct. We know all this, but when we see 
how much misei"y there is in the world and 
instinctively cry out against it, and when we 
see some things that government may do to 
mitigate it, we are apt to forget how little after 
all it is possible for any government to do, and 
to hold the particular government of the time 
and place to a standard of responsibility which 
no government can possibly meet. The chief 
motive power which has moved mankind along 
the course of development that we call the 
progress of civilization has been the sum total 
of intelligent selfishness in a vast number of 
individuals, each working for his own support, 
his own gain, his own betterment. It is that 
which has cleared the forests and cultivated 
the fields and built the ships and railroads, 
made the discoveries and inventions, covered 
the earth with commerce, softened by inter- 
course the enmities of nations and r;aces, and 



EXPERIMENTS 



15 



made possible the wonders of literature and of 
art. Gradually, during the long process, sel- 
fishness has grown more intelligent, with a 
broader view of individual benefit from the 
common good, and gradually the influences of 
nobler standards of altruism, of justice, and 
human sympathy have impressed themselves 
upon the conception of right conduct among 
civilized men. But the complete control of 
such motives will be the millennium. Any at- 
tempt to enforce a millennial standard now by 
law must necessarily fail, and any judgment 
which assumes government's responsibility to 
enforce such a standard must be an unjust 
judgment. Indeed, no such standard can ever 
be forced. It must come, not by superior 
force, but from the changed nature of man, 
from his willingness to be altogether just and 
merciful. 

A third consideration is that it is not merely 
useless but injurious for government to at- 
tempt too much. It is manifest that to enable 
it to deal with the new conditions I have 



l6 EXPERIMENTS AND ESSENTIALS 

described we must invest government with 
authority to interfere with the individual 
conduct of the citizen to a degree hitherto 
unknown in this country. When government 
undertakes to give the individual citizen pro- 
tection by regulating the conduct of others 
towards him in the field where formerly he 
protected himself by his freedom of contract, 
it is limiting the liberty of the citizen whose 
conduct is regulated and taking a step in the 
direction of paternal government. While the 
new conditions of industrial life make it 
plainly necessary that many such steps shall be 
taken, they should be taken only so far as they 
are necessary and are effective. Interference 
with individual liberty by government should 
be jealously watched and restrained, because 
the habit of undue interference destroys that 
independence of character without which in its 
citizens no free government can endure. 

We should not forget that while institutions 
receive their form from national character 
they have a powerful reflex influence upon that 



EXPERIMENTS 17 

character. Just so far as a nation allows its 
institutions to be moulded by its weaknesses 
of character rather than by its strength it 
creates an influence to increase weakness at 
the expense of strength. 

The habit of undue interference by govern- 
ment in private affairs breeds the habit of un- 
due reliance upon government in private affairs 
at the expense of individual initiative, energy, 
enterprise, courage, independent manhood. 

The strength of self-government and the 
motive power of progress must be found in 
the characters of the individual citizens who 
make up a nation. Weaken individual char- 
acter among a people by comfortable reliance 
upon paternal government and a nation soon 
becomes incapable of free self-government and 
fit only to be governed : the higher and nobler 
qualities of national life that make for ideals 
and effort and achievement become atrophied 
and the nation is decadent. 

A fourth consideration is that in the nature 
of things all government must be imperfect be- 



i8 EXPERIMENTS AND ESSENTIALS 

cause men are imperfect. Every system has 
its shortcomings and inconveniences ; and these 
are seen and felt as they exist in the system 
under which we Hve, while the shortcomings 
and inconveniences of other systems are for- 
gotten or ignored. 

It is not unusual to see governmental meth- 
ods reformed and after a time, long enough 
to forget the evils that caused the change, to 
have a new movement for a reform which con- 
sists in changing back to substantially the same 
old methods that were cast out by the first 
reform. 

The recognition of shortcomings or incon- 
veniences in government is not by itself suf- 
ficient to warrant a change of system. There 
should be also an effort to estimate and com- 
pare the short-comings and inconveniences of 
the system to be substituted, for although 
they may be different they will certainly exist. 

A fifth consideration is that whatever 
changes in government are to be made, we 
should follow the method which undertakes 



EXPERIMENTS 



19 



as one of its cardinal points to hold fast that 
which is good. Francis Lieber, whose affec- 
tion for the country of his birth equalled his 
loyalty to the country of his adoption, once 
said: 

"There is this difference between the 
English, French, and Germans : that the 
English only change what is necessary 
and as far as it is necessary; the French 
plunge into all sorts of novelties by whole 
masses, get into a chaos, see that they 
are fools and retrace their steps as 
quickly, with a high degree of practical 
sense in all this unpracticability ; the Ger- 
mans attempt no change without first re- 
curring to first principles and metaphysics 
beyond them, systematizing the smallest 
details in their minds; and when at last 
they mean to apply all their, meditation, 
opportunity, with its wide and swift wings 
of a gull, is gone." 

This was written more than sixty years ago 



20 EXPERIMENTS AND ESSENTIALS 

before the present French RepubHc and the 
present German Empire, and Lieber would 
doubtless have modified his conclusions in view 
of those great achievements in government if 
he were writing to-day. But he does cor- 
rectly indicate the differences of method and 
the dangers avoided by the practical course 
which he ascribes to the English, and in ac- 
cordance with which the great structure of 
British and American liberty has been built 
up generation after generation and century af- 
ter century. Through all the seven hundred 
years since Magna Charta we have been shap- 
ing, adjusting, adapting our system to the new 
conditions of life as they have arisen, but we 
have always held on to everything essentially 
good that we have ever had in the system. 
We have never undertaken to begin over again 
and build up a new system under the idea that 
we could do it better. We have never let go 
of Magna Charta or the Bill of Rights or the 
Declaration of Independence or the Constitu- 
tion. When we take account of all that gov- 



EXPERIMENTS 21 

ernments have sought to do and have failed to 
do in this selfish and sinful world, we find 
that as a rule the application of new theories 
of government, though devised by the most 
brilliant constructive genius, have availed but 
little to preserve the people of any consider- 
able regions of the earth for any long periods 
from the evils of despotism on the one hand 
or of anarchy on the other, or to raise any 
considerable portion of the mass of mankind 
above the hard conditions of oppression and 
misery. And we find that our system of gov- 
ernment which has been built up in this prac- 
tical way through so many centuries, and the 
whole history of which is potent in the pro- 
visions of our Constitution, has done more 
to preserve liberty, justice, security, and free- 
dom of opportunity for many people for a long 
period and over a great portion of the earth, 
than any other system of government ever de- 
vised by man. Human nature does not change 
very much. The forces of evil are hard to 
control now as they always have been. It is 



22 EXPERIMENTS AND ESSENTIALS 

easy to fail and hard to succeed in reconciling 
liberty and order. In dealing with this most 
successful body of governmental institutions 
the question should not be what sort of gov- 
ernment do you or I think we should have. 
What you and I think on such a subject is of 
very little value indeed. The question should 
be: 

How can we adapt our laws and the work- 
ings of our government to the new conditions 
which confront us without sacrificing any es- 
sential element of this system of government 
which has so nobly stood the test of time and 
without abandoning the political principles 
which have inspired the growth of its institu- 
tions? For there are political principles, and 
nothing can be more fatal to self-government 
than to lose sight of them under the influence 
of apparent expediency. 

In attempting to answer this question we 
need not trouble ourselves very much about 
the multitude of excited controversies which 
have arisen over new methods of extra con- 



EXPERIMENTS 23 

stitutional-political organization and proce- 
dure. Direct nominations, party enrollments, 
instructions to delegates, presidential prefer- 
ence primaries, independent nominations, all 
relate to forms of voluntary action outside the " 
proper field of governmental institutions. All ' 
these new political methods are the result of 
efforts of the rank and file of voluntary parties 
to avoid being controlled by the agents of their 
own party organization, and to get away from 
real evils in the form of undue control by or- 
ganized minorities with the support of organ- 
ized capital. None of these expedients is an 
end in itself. They are tentative, experi- 
mental. They are movements not towards 
something definite but away from something 
definite. They may be inconvenient or dis- 
tasteful to some of us, but no one need be ser- 
iously disturbed by the idea that they threaten 
our system of government. If they work well 
they will be an advantage. If they work badly 
they will be abandoned and some other ex- 
pedient will be tried, and the ultimate outcome 



24 EXPERIMENTS AND ESSENTIALS 

will doubtless be an improvement upon the 
old methods. 

There is another class of new methods which 
do relate to the structure of government and 
which call for more serious consideration here. 
Chief in this class are : 

The Initiative; that is to say, direct legisla- 
tion by vote of the people upon laws proposed 
by a specified number or proportion of the 
electors. 

The Compulsory Referendum; that is to say, 
a requirement that under certain conditions 
laws that have been agreed upon by a legis- 
lative body shall be referred to a popular vote 
and become operative only upon receiving a 
majority vote. 

The Recall of Officers before the expiration 
of the terms for which they have been elected 
by a vote of the electors to be had upon the 
demand of a specified number or proportion of 
them. 

The Popular Review of Judicial Decisions 
upon constitutional questions; that is to say. 



EXPERIMENTS 25 

a provision, under which, when a court of last 
resort has decided that a particular law is in- 
valid, because in conflict with a constitutional 
provision, the law may nevertheless be made 
valid by a popular vote. 

Some of these methods have been made a 
part of the constitutional system of a 'con- 
siderable number of our states. They have 
been accompanied invariably by provisions for 
very short and easy changes of state constitu- 
tions, and, so long- as they are confined to the 
particular states which have chosen to adopt 
them, they may be regarded as experiments 
which we may watch with interest, whatever 
may be our opinions as to the outcome, and 
with the expectation that if they do not work 
well they also will be abandoned. This is 
especially true because, since the adoption of 
the Fourteenth Amendment to the Constitu- 
tion, the states are prohibited from violating in 
their own affairs the most important principles 
of the National Constitution. It is not to be 
expected, however, that new methods and rules 



26 EXPERIMENTS AND ESSENTIALS 

of action in government shall become universal 
in the states and not ultimately bring about a 
change in the national system. It vv^ill be use- 
ful, therefore, to consider whether these new 
methods if carried into the national system 
would sacrifice any of the essentials of that 
system which ought to be preserved. 

The Constitution of the United States deals 
in the main with essentials. There are some 
non-essential directions such as those relating 
to the methods of election and of legislation, 
but in the main it sets forth the foundations 
of government in clear, simple, concise terms. 
It is for this reason that it has stood the test 
of more than a century with but slight amend- 
ment, while the modern state constitutions, 
into which a multitude of ordinary statutory 
provisions are crov^ded, have to be changed 
from year to year. The peculiar and essential 
qualities of the government established by the 
Constitution are : \ 

First, it is representative. 

Second, it recognizes the liberty of the in- 



EXPERIMENTS 27 

dividual citizen as distinguished from the total 
mass of citizens, and it protects that liberty 
by specific limitations upon the power of 
government. 

Third, it distributes the legislative, ex- 
ecutive and judicial powers, which make up the 
sum total of all government, into three sep- 
arate departments, and specifically limits the 
powers of the officers in each department. \ 

Fourth, it superimposes upon a federation 
of state governments, a national government 
with sovereignty acting directly not merely 
upon the states, but upon the citizens of each 
state, within a line of limitation drawn be- 
tween the powers of the national government 
and the powers of the state governments. 

Fifth, it makes observance of its limitations 
requisite to the validity of laws, whether 
passed by the nation or by the states, to be 
judged by the courts of law in each concrete 
case as it arises. 

Every one of these five characteristics of the 
government established by the Constitution 



c 



28 EXPERIMENTS AND ESSENTIALS 

was a distinct advance beyond the ancient 
attempts at popular government, and the elimi- 
nation of any one of them would be a retro- 
grade movement and a reversion to a former 
and discarded type of government. In each 
case it would be the abandonment of a distinct- 
ive feature of government which has succeed- 
ed, in order to go back and try again the 
methods of government which have failed. 
Of course we ought not to take such a back- 
ward step except under the pressure of inev- 
itable necessity. 

The first tw^o of the characteristics which I 
have enumerated, those which embrace the con- 
ception of representative government and the 
conception of individual liberty, were the pro- 
ducts of the long process of development of 
freedom in England and America. They were 
not invented by the makers of the Constitu- 
tion. They have been called inventions of the 
Anglo-Saxon race. They are the chief con- 
tributions of that race to the political develop- 
ment of civilization. 



EXPERIMENTS 29 

The expedient of representation first found 
its beginning in the Saxon witenagemot. It 
was lost in the Norman conquest. It was re- 
stored step by step, through the centuries in 
which parliament established its power as an 
institution through the granting or withhold- 
ing of aids and taxes for the king's use. It 
was brought to America by the English colo- 
nists. It was the practice of the colonies which 
formed the Federal Union. It entered into the 
constitution as a matter of course, because it 
was the method by which modern liberty had 
been steadily growing stronger and broader 
for six centuries as opposed to the direct, un- 
representative method of government in which 
the Greek and Roman and Italian republics had 
failed. This representative system has in its 
turn impressed itself upon the nations which 
derived their political ideas from Rome and 
has afforded the method through which popu- 
lar liberty has been winning forward in its 
struggle against royal and aristocratic power 
and privilege the world over, Bluntschli, the 



30 EXPERIMENTS AND ESSENTIALS 

great Heidelberg publicist of the last century, 
says: 

''Representative government and self- 
government are the great works of the 
English and American peoples. The Eng- 
lish have produced representative mon- 
archy with parliamentary legislation and 
parliamentary government The Ameri- 
cans have produced the representative 
republic. We Europeans upon the 
Continent recognize in our turn that in 
representative government alone lies the 
hoped-for union between civil order and 
popular liberty." 

The Initiative and Compulsory Referendum 
are attempts to cure the evils which have 
developed in our practice of representative 
government by means of a return to the old, 
unsuccessful, and discarded method of direct 
legislation and by rehabilitating one of the 
most impracticable of Rousseau's theories. 
Every candid student of our governmental ?if- 



EXPERIMENTS 31 

fairs must agree that the evils to be cured 
have been real and that the motive which has 
prompted the proposal of the Initiative and 
Referendum is commendable. I do not think 
that these expedients will prove wise or suc- 
cessful ways of curing these evils for reasons 
which I will presently indicate; but it is not 
necessary to assume that their trial will be de- '- 
structive of our system of government. They 
do not aim to destroy representative govern- 
ment, but to modify and control it, and were 
it not that the effect of these particular meth- 
ods is likely to go beyond the intention of 
their advocates they would not interfere ser- 
iously with representative government except 
in so far as they might ultimately prove to be 
successful expedients. If they did not work 
satisfactorily they would be abandoned, leav- 
ing representative government still in full force 
and effectiveness. 

There is now a limited use of the Refer- 
endum upon certain comparatively simple 
questions. No one has ever successfully coi> 



32 EXPERIMENTS AND ESSENTIALS 

troverted the view expressed by Burke in his 
letter to the electors of Bristol, that his con- 
stituents were entitled not merely to his vote 
but to his judgment, even though they might 
not agree with it. But there are some ques- 
tions upon which the determining fact must 
be the preference of the people of the country 
or of a community ; such as the question where 
a capital city or a county seat shall be located ; 
the question whether a debt shall be incurred 
that will be a lien on their property for a 
specific purpose; the question whether the sale 
of intoxicating liquors shall be permitted. 
Upon certain great simple questions which are 
susceptible of a yes or no answer it is appro- 
priate that the people should be called upon 
to express their wish by a vote just as they 
express their choice of the persons who shall 
exercise the powers of government by a vote. 
This, however, is very different from under- 
taking to have the ordinary powers of legis- 
lation exercised at the ballot box. 

In this field the weakness, both of the Initia- 



EXPERIMENTS 33 

tive and of the Compulsory Referendum, is 
that they are based upon a radical error as to 
what constitutes the true difficulty of wise 
legislation. The difficulty is not to determine 
what ought to be accomplished but to deter- 
mine how to accomplish it. The affairs with 
which statutes have to deal as a rule involve 
the working of a great number and variety of 
motives incident to human nature, and the 
working of those motives depends upon com- 
plicated and often obscure facts of production, 
trade, social life, with which men generally 
are not familiar and which require study and 
investigation to understand. Thrusting a 
rigid prohibition or command into the oper- 
ation of these forces is apt to produce quite 
unexpected and unintended results. More- 
over, we already have a great body of laws, 
both statutory and customary, and a great 
body of judicial decisions as to the meaning 
and effect of existing laws. The result of 
adding a new law to this existing body of laws 
is that we get, not the simple consequence 



34 EXPERIMENTS AND ESSENTIALS 

which the words, taken by themselves, would 
seem to require, but a resultant of forces from 
the new law taken in connection with all exist- 
ing laws. A very large part of the litigation, 
injustice, dissatisfaction, and contempt for law 
which we deplore, results from ignorant and 
inconsiderate legislation with perfectly good 
intentions. The only safeguard against such 
evils and the only method by which intelligent 
legislation can be reached is the method of 
full discussion, comparison of views, modifi- 
cation and amendment of proposed legislation 
in the light of discussion and the contribution 
and conflict of many minds. This process can 
be had only through the procedure of repre- 
sentative legislative bodies. Representative 
government is something more than a device 
to enable the people to have their say when 
they are too numerous to get together and say 
it. It is something more than the employment 
of experts in legislation. Through legislative 
procedure a different kind of treatment for 
legislative questions is secured by concentre- 



EXPERIMENTS 35 

tion of responsibility, by discussion, and by 
opportunity to meet objection with amend- 
ment. For this reason the attempt to legislate 
by calling upon the people by popular vote to 
say yes or no to complicated statutes must 
prove unsatisfactory and on the whole inju- 
rious. In ordinary cases the voters will not 
and cannot possibly bring to the consideration 
of proposed statutes the time, attention, and 
knowledge required to determine whether such 
statutes will accomplish what they are intend- 
ed to accomplish; and the vote usually will 
turn upon the avowed intention of such pro- 
posals rather than upon their adequacy to give 
effect to the intention. 

This would be true if only one statute 
were to be considered at one election; but 
such simplicity is not practicable. There 
always will be, and if the direct system is 
to amount to anything there must be, many 
proposals urged upon the voters at each oppor- 
tunity. 

The measures submitted at one time in some 



36 EXPERIMENTS AND ESSENTIALS 

of the Western States now fill considerable 
volumes. 

With each proposal the voter's task becomes 
more complicated and difficult. 

Yet our ballots are already too complicated. 
The great blanket sheets with scores of officers 
and hundreds of names to be marked are quite 
beyond the intelligent action in detail of nine 
men out of ten. 

The most thoughtful reformers are already 
urging that the voter's task be made more 
simple by giving him fewer things to consider 
and act upon at the same time. 

This is the substance of what is called the 
''Short Ballot" reform; and it is right, for the 
more questions divide public attention the fewer 
questions the voters really decide for them- 
selves on their own judgment and the greater 
the power of the professional politician. 

There is moreover a serious danger to be 
apprehended from the attempt at legislation by 
the Initiative and Compulsory Referendum, 
arising from its probable effect on the char- 



EXPERIMENTS 37 

acter of representative bodies. These expedi- 
ents result from distrust of legislatures. They 
are based on the assertion that the people are 
not faithfully represented in their legislative 
bodies, but are misrepresented. The same dis- 
trust has led to the encumbering of modern 
state constitutions by a great variety of minute 
limitations upon legislative power. Many of 
these constitutions, instead of being simple 
frameworks of government, are bulky and de- 
tailed statutes legislating upon subjects which 
the people are unwilling to trust the legisla- 
ture to deal with. So between the new consti- 
tutions, which exclude the legislatures from 
power, and the Referendum, by which the peo- 
ple overrule what they do, and the Initiative, 
by which the people legislate in their place, the 
legislative representatives who were formerly 
honored, are hampered, shorn of power, re- 
lieved of responsibility, discredited, and treated 
as unworthy of confidence. The unfortunate 
effect of such treatment upon the character of 
legislatures and the kind of men who will be 



f 



38 EXPERIMENTS AND ESSENTIALS 

willing to serve in them can well be imagined. 
It is the influence of such treatment that threat- 
ens representative institutions in our country. 
Granting that there have been evils in our 
legislative system which ought to be cured, I 
cannot think that this is the right way to cure 
them. It would seem that the true way is 
for the people of the country to address them- 
selves to the better performance of their own 
duty in selecting their legislative representa- 
tives and in holding those representatives to 
strict responsibility for their action. The sys- 
tem of direct nominations, which is easy of 
application in the simple proceeding of select- 
ing members of a legislature, and the Short 
Ballot reform aim at accomplishing that re- 
sult. I think that along these lines the true 
remedy is to be found. No system of self- 
government will continue successful unless the 
voters have sufficient public spirit to perform 
their own duty at the polls, and the attempt to 
reform government by escaping from the duty 
of selecting honest and capable representatives, 



EXPERIMENTS 39 

under the idea that the same voters who fail 
to perform that duty will faithfully perform 
the far more onerous and difficult duty of 
legislation, seems an exhibition of weakness 
rather than of progress. 



II 

ESSENTIALS 



II 

ESSENTIALS 

In the first of these lectures I specified cer- 
tain essential characteristics of our system of 
government, and discussed the preservation of 
the first — its representative character. The 
four other characteristics specified have one 
feature in common. They all aim to preserve 
rights by limiting power. 

Of these the most fundamental is the pres- 
ervation in our Constitution of the Anglo- 
Saxon idea of individual liberty. The 
republics of Greece and Rome had no such con- 
ception. All political ideas necessarily concern 
man as a social animal, as a member of society 
— a member of the state. The ancient repub- 
lics, however, put the state first and regarded 
the individual only as a member of the state. 
They had in view the public rights of the state 



44 



EXPERIMENTS AND ESSENTIALS 



in which all its members shared, and the rights 
of the members as parts of the whole, but they 
did not think of individuals as having rights 
independent of the state, or against the state. 
They never escaped from the attitude towards 
public and individual civil rights, which was 
dictated by the original and ever-present ne- 
cessity of military organization and defense. 
The Anglo-Saxon idea, on the other hand, 
looked first to the individual. In the early 
days of English history, without theorizing 
much upon the subject, the Anglo-Saxons be- 
gan to work out their political institutions 
along the line expressed in our Declaration of 
Independence, that the individual citizen has 
certain inalienable rights — the right to life, to 
liberty, to the pursuit of happiness, and that 
government is not the source of these rights, 
but is the instrument for the preservation and 
promotion of them. So when a century and a 
half after the conquest the barons of England 
set themselves to limit the power of the Crown 
they did not demand a grant of rights. They 



ESSENTIALS 45 

asserted the rights of individual freedom and 
demanded observance of them, and they laid 
the corner-stone of our system of government 
in this solemn pledge of the Great Charter: 

''No freeman shall be taken, or im- 
prisoned, or be disseized of his free hold, 
or his liberties, or his free customs, or be 
outlawed, or exiled, or otherwise de- 
stroyed, but by the lawful judgment of 
his peers, or by the law of the land." 

Again and again in the repeated confirmations 
of the Great Charter, in the Petition of Rights, 
in the Habeas Corpus Act, in the Bill of 
Rights, in the Massachusetts Body of Liber- 
ties, in the Virginia Bill of Rights, and, finally, 
in the immortal Declaration of 1776 — in all 
the great utterances of striving for broader 
freedom which have marked the development 
of modern liberty, sounds the same dominant 
note of insistence upon the inalienable right of 
individual manhood under government but in- 



46 EXPERIMENTS AND ESSENTIALS 

dependent of government, and, if need be, 
against government, to life and liberty. 

It is impossible to overestimate the impor- 
tance of the consequences which followed from 
these two distinct and opposed theories of 
government. The one gave us the dominion, 
but also the decline and fall of, Rome. It 
followed the French Declaration of the Rights 
of Man, with the negation of those rights in 
the oppression of the Reign of Terror, the 
despotism of Napoleon, the popular submission 
to the second empire and the subservience of 
the individual citizen to official superiority 
which still prevails so widely on the continent 
of Europe. The tremendous potency of the 
other subdued the victorious Normans to the 
conquered Saxon's conception of justice, re- 
jected the claims of divine right by the Stew- 
arts, established capacity for self-government 
upon the independence of individual character 
that knows no superior but the law, and sup- 
plied the amazing formative power which has 
molded, according to the course and practice 



ESSENTIALS 47 

of the common law, the thought and custom 
of the hundred milHons of men drawn from 
all lands and all races who inhabit this conti- 
nent north of the Rio Grande. 

The mere declaration of a principle, how- 
ever, is of little avail unless it be supported by \ 
practical and specific rules of conduct through 
which the principle shall receive effect.. So 
Magna Charta imposed specific limitations 
upon royal authority to the end that individual 
liberty might be preserved, and so to the same 
end our Declaration of Independence was fol- 
lowed by those great rules of right conduct 
which we call the limitations of the constitu- 
tion. Magna Charta imposed its limitations 
upon the kings of England and all their offi- 
cers and agents. Our constitution imposed its 
limitations upon the sovereign people and all 
their officers and agents, excluding all the 
agencies of popular government from author- 
ity to do the particular things which would 
destroy or impair the declared inalienable 
right of the individual. 



48 EXPERIMENTS AND ESSENTIALS 

Thus the constitution provides: No law 
shall be made by Congress prohibiting the free 
exercise of religion, or abridging the freedom 
of speech or of the press. The right of the 
people to keep and bear arms shall not be in- 
fringed. The right of the people to be secure 
in their persons, houses, papers and effects, 
against unreasonable searches and seizures, 
shall not be violated. No person shall be sub- 
ject for the same offense to be twice put in 
jeopardy of life or limb; nor be compelled, in 
any criminal case, to be a witness against him- 
self ; nor be deprived of life, liberty, or prop- 
erty without due process of law; nor shall 
private property be taken for public use with- 
out just compensation. In all criminal prose- 
cutions, the accused shall enjoy the right to 
a speedy and public trial, by an impartial jury 
of the state and district wherein the crime shall 
have been committed; and to be informed of 
the nature and cause of the accusation, to be 
confronted with the witnesses against him, to 
have compulsory process for obtaining wit- 



ESSENTIALS ^g 

nesses in his favor, and to have the assistance 
of counsel for his defense. Excessive bail 
shall not be required, nor excessive fines im- 
posed, nor cruel and unusual punishment in- 
flicted. The privilege of the writ of habeas 
corpus shall not be suspended, except in case 
of rebellion or invasion. No bill of attainder 
or ex post facto law shall be passed. And by 
the Fourteenth Amendment, no state shall de- 
prive any person of life, liberty, or property, 
without due process of law; nor deny to any 
person within its jurisdiction the equal pro- 
tection of the law. 

We have lived so long under the protection 
of these rules that most of us have forgotten 
their importance. They have been unques- 
tioned in America so long that most of us have 
forgotten the reasons for them. But if we 
lose them we shall learn the reasons by hard 
experience. And we are in some danger of 
losing them, not all at once but gradually, by 
indifference. 

As Professor Sohm says: 'The greatest 



50 EXPERIMENTS AND ESSENTIALS 

and most far reaching revolutions in history 
are not consciously observed at the time of 
their occurrence." 

Every one of these provisions has a history. 
Every one stops a way through which the 
overwhelming power of government has op- 
pressed the weak individual citizen, and may 
do so again if the way be opened. Such pro- 
visions as these are not mere commands. They 
withhold power. The instant any officer, of 
whatever kind or grade, transgresses them he 
ceases to act as an officer. The power of 
sovereignty no longer supports him. The 
majesty of the law no longer gives him au- 
thority. The shield of the law no longer 
protects him. He becomes a trespasser, a 
despoiler, a law breaker, and all the machinery 
of the law may be set in motion for his re- 
straint or punishment. It is true that the 
people who have made these rules may repeal 
them. As restraints upon the people them- 
selves they are but self-denying ordinances 
which the people may revoke, but the supreme 



ESSENTIALS 51 • 

test of capacity for popular self-government 
is the possession of that power of self-restraint 
through which a people can subject its own 
conduct to the control of declared principles of 

action. 

These rules of constitutional limitation dif- 
fer from ordinary statutes in this, that these 
rules are made impersonally, abstractly, dis- 
passionately, impartially, as the people's ex- 
pression of what they believe to be right and 
necessary for the preservation of their idea of 
liberty and justice. The process of amend- 
ment is so guarded by the constitution itself as 
to require the lapse of time and opportunity 
for deliberation and consideration and the 
passing away of disturbing influences which 
may be caused by special exigencies or excite- 
ments, before any change can be made. On the 
contrary, ordinary acts of legislation are sub- 
ject to the considerations of expediency for 
the attainment of the particular objects of the 
moment, to selfish interests, momentary im- 
pulses, passions, prejudices, temptations. If 



52 



EXPERIMENTS AND ESSENTIALS 



there be no general rules which control particu- 
lar action, general principles are obscured or 
set aside by the desires and impulses of the 
occasion. Our knowledge of the weakness of 
human nature and countless illustrations from 
the history of legislation in our own country 
point equally to the conclusion that if govern- 
mental authority is to be controlled by rules of 
action, it cannot be relied upon to impose those 
rules upon itself at the time of action, but must 
have them prescribed beforehand. 

The second class of limitations upon official 
power provided in our constitution prescribe 
and maintain the distribution of power to the 
different departments of government and the 
limitations upon the officers invested with au- 
thority in each department. This distribution 
follows the natural and logical lines of the dis- 
tinction between the different kinds of power 
■ — legislative, executive, and judicial. But the 
precise allotment of power and lines of distinc- 
tion are not so important as it is that there 
shall be distribution, and that each officer shall 



ESSENTIALS 53 

be limited in accordance with that distribution, 
for without such limitations there can be no 
security for liberty. If, whatever great officer 
of state happens to be the most forceful, skill- 
ful, and ambitious, is permitted to overrun and 
absorb to himself the powers of all other offi- 
cers and to control their action, there ensues 
that concentration of power which destroys the 
working of free institutions, enables the holder 
to continue himself in power, and leaves no 
opportunity to the people for a change except 
through a revolution. Numerous instances of 
this very process are furnished by the history 
of some of the Spanish-American republic^ 
It is of little consequence that the officer who 
usurps the power of others may des^ign only to 
advance the public interest and to govern well. 
The system which permits an honest and well- 
meaning man to do this will afford equal op- 
portunity for selfish ambition to usurp power 
in its own interest. Unlimited official power 
concentrated in one person is despotism, and 
it is only by carefully observed and jealously 



54 



EXPERIMENTS AND ESSENTIALS 



maintained limitations upon the power of every 
public officer that the workings of free institu- 
tions can be continued. 

The rigid limitation of official power is nec- 
essary not only to prevent the deprivation of 
substantial rights by acts of oppression, but to 
maintain that equality of political condition 
which is so important for the independence of 
individual character among the people of the 
country. When an officer has authority over 
us only to enforce certain specific laws at par- 
ticular times and places, and has no authority 
regarding anything else, we pay deference to 
the law which he represents, but the personal 
relation is one of equality. Give to that officer, 
however, unlimited power, or power which 
we do not know to be limited, and the relation 
at once becomes that of an inferior to a supe- 
rior. The inevitable result of such a relation 
long continued is to deprive the people of the 
country of the individual habit of independ- 
ence. This may be observed in many of the 
countries of Continental Europe, where offi- 



ESSENTIALS 55 

cial persons are treated with the kind of defer- 
ence, and exercise the kind of authority, which 
are appropriate only to the relations between 
superior and inferior. 

So the Massachusetts Constitution of 1780, 
after limiting the powers of each department 
to its own field, declares that this is done "to 
the end it may be a government of laws and 
not of men." 

The third class of limitations I have men- 
tioned are those made necessary by the novel 
system which I have described as superimpos- 
ing upon a federation of state governments, a 
national government acting directly upon the 
individual citizens of the states. This expedi- 
ent was wholly unknown before the adoption 
of our constitution. All the confederations 
which had been attempted before that time 
were simply leagues of states, and whatever 
central authority there was derived its author- 
ity from and had its relations with the states 
as separate bodies politic. This was so of the 
old confederation. Each citizen owed his al- 



56 EXPERIMENTS AND ESSENTIALS 

legiance to his own state and each state had 
its obHgations to the confederation. Under 
our constitutional system in every part of the 
territory of every state there are two sover- 
eigns, and every citizen owes allegiance to 
both sovereigns— to his state and to his na- 
tion. In regard to some matters, which may 
generally be described as local, the state is su- 
preme. In regard to other matters, which may 
generally be described as national, the nation 
is supreme. It is plain that to maintain the 
line between these two sovereignties operating 
in the same territory and upon the same citi- 
zens is a matter of no little difficulty and deli- 
cacy. Nothing has involved more constant 
discussion in our political history than ques- 
tions of conflict between these two powers, 
and we fought the great Civil War to deter- 
mine the question whether in case of conflict 
the allegiance to the state or the allegiance to 
the nation was of superior obligation. We 
should observe that the Civil War arose be- 
cause the constitution did not draw a clear line 



ESSENTIALS 57 

between the national and state powers regard- 
ing slavery. It is of very great importance 
that both of these authorities, state and na- 
tional, shall be preserved together and that the 
limitations which keep each within its proper 
province shall be maintained. If the power of 
the states were to override the power of the 
nation we should ultimately cease to have a 
nation and become only a body of really sepa- 
rate, although confederated, state sovereignties 
continually forced apart by diverse interests 
and ultimately quarreling with each other and 
separating altogether. On the other hand, 
if the power of the nation were to override 
that of the states and usurp their functions 
we should have this vast country, with its great 
population, inhabiting widely separated re- 
gions, differing in climate, in production, in in- 
dustrial and social interests and ideas, governed 
in all its local affairs by one all-powerful, 
central government at Washington, imposing 
upon the home life and behavior of each com- 
munity the opinions and ideas of propriety 



58 EXPERIMENTS AND ESSENTIALS 

of distant majorities. Not only would this be 
intolerable and alien to the idea of free self- 
government, but it would be beyond the power 
of a central government to do directly. De- 
centralization would be made necessary by the 
mass of government business to be transacted, 
and so our separate localities would come to 
be governed by delegated authority — by pro- 
consuls authorized from Washington to exe- 
cute the will of the great majority of the whole 
people. No one can doubt that this also would 
lead by its different route to the separation of 
our Union. Preservation of our dual system 
of government, carefully restrained in each of 
its parts by the limitations of the constitution, 
has made possible our growth in local self- 
government and national power in the past, 
and, so far as we can see, it is essential to the 
continuance of that government in the future. 
All of these three classes of constitutional 
limitations are therefore necessary to the per- 
petuity of our government. I do not wish to 
be understood as saying that every single limi- 



ESSENTIALS 59 

tation is essential. There are some limitations 
that might be changed and something different 
substituted. But the system of limitation must 
be continued if our governmental system is to 
continue — if we are not to lose the funda- 
mental principles of government upon which 
our Union is maintained and upon which our 
race has won the liberty secured by law for 
which it has stood foremost in the world. 

Lincoln covered this subject in one of his 
comprehensive statements that cannot be 
quoted too often. He said in the first 
inaugural : 

"A majority held in restraint by con- 
stitutional checks and limitations and 
always changing easily with deliberate 
changes of popular opinion and sentiment 
is the only true sovereign of a free peo- 
ple. Whoever rejects it does of necessity 
fly to anarchy or despotism." 

Rules of limitation, however, are useless 
unless they are enforced. The reason for re- 



6o EXPERIMENTS AND ESSENTIALS 

straining rules arises from a tendency to do 
the things prohibited. Otherwise no rule 
would be needed. Against all practical rules 
of limitation — all rules limiting official con- 
duct, there is a constant pressure from one 
side or the other. Honest differences of opin- 
ion as to the extent of power, arising from 
different points of view make this inevitable, 
to say nothing of those weaknesses and faults 
of human nature which lead men to press the 
exercise of power to the utmost under the in- 
fluence of ambition, of impatience with op- 
position to their designs, of selfish interest and 
the arrogance of office. No mere paper rules 
will restrain these powerful and common 
forces of human nature. 

The agency by which, under our system of 
government, observance of constitutional limi- 
tation is enforced is the judicial power. The 
constitution provides that "This constitution, 
and the laws of the United States which shall 
be made in pursuance thereof, and all treaties 
made, or which shall be made, under the author- 



ESSENTIALS 6l 

ity of the United States, shall be the supreme 
law of the land; and the judges in every state 
shall be bound thereby, anything in the consti- 
tution or laws of any state to the contrary not- 
withstanding." Under this provision an enact- 
ment by Congress not made in pursuance of the 
constitution, or an enactment of a state con- 
trary to the constitution, is not a law. Such 
an enactment should strictly have no more 
legal effect than the resolution of any private 
debating society. The constitution also pro- 
vides that the judicial power of the United 
States shall extend to all cases in law and 
equity arising under the constitution and laws 
of the United States. Whenever, therefore, in 
a case before a Federal court rights are as- 
serted under or against some law which is 
claimed to violate some limitation of the con- 
stitution, the court is obliged to say whether 
the law does violate the constitution or not, 
because if it does not violate the constitution 
the court must give effect to it as law, while 
if it does violate the constitution it is no law 



62 EXPERIMENTS AND ESSENTIALS 

at all and the court is not at liberty to give 
effect to it. The courts do not render decisions 
like imperial rescripts declaring laws valid or 
invalid. They merely render judgment on the 
rights of the litigants in particular cases, and 
in arriving at their judgment they refuse to 
give effect to statutes which they find clearly 
not to be made in pursuance of the constitu- 
tion and therefore to be no laws at all. Their 
judgments are technically binding only in the 
particular case decided, but the knowledge 
that the court of last resort has reached such 
a conclusion concerning a statute, and that a 
similar conclusion would undoubtedly be 
reached in every case of an attempt to found 
rights upon the same statute, leads to a general 
acceptance of the invalidity of the statute. 

There is only one alternative to having the 
courts decide upon the validity of legislative 
acts, and that is by requiring the courts to 
treat the opinion of the legislature upon the 
validity of its statutes, evidenced by their pas- 
sage, as conclusive. But the effect of this 



ESSENTIALS 6-? 

would be that the legislature would not be 
limited at all except by its own will. All 
the provisions designed to maintain a govern- 
ment carried on by officers of limited powers, 
all the distinctions between what is permitted 
to the national government and what is per- 
mitted to the state governments, all the safe- 
guards of the life, liberty and property of the 
citizen against arbitrary power, would cease to 
bind Congress, and on the same theory they 
would cease also to bind the legislatures of 
the states. Instead of the constitution being 
superior to the laws the laws would be superior 
to the constitution, and the essential principles 
of our government would disappear. More 
than one hundred years ago. Chief Justice 
Marshall, in the great case of Marbury vs. 
Madison, set forth the view upon which our 
government has ever since proceeded. He 
said: 

"The powers of the legislature are de- 
fined and limited; and that those limits 



64 EXPERIMENTS AND ESSENTIALS 

may not be mistaken or forgotten, the 
constitution is written. To what purpose 
are powers limited, and to what purpose 
is that limit committed to writing, if these 
limits may, at any time, be passed by 
those intended to be restrained ? The dis- 
tinction between a government with lim- 
ited and unlimited powers is abolished, if 
those limits do not confine the persons on 
whom they are imposed, and if acts pro- 
hibited and acts allowed are of equal obli- 
gation. It is a proposition too plain to 
be contested, that the constitution controls 
any legislative act repugnant to it; or that 
the legislature may alter the constitution 
by an ordinary act. 

"Between these alternatives, there is no 
middle ground. The constitution is either 
a superior, paramount law, unchangeable 
by ordinary means, or it is on a level with 
ordinary legislative acts, and, like other 
acts, is alterable when the legislature shall 
please to alter it. If the former part of 



ESSENTIALS 65 

the alternative be true, then a legislative 
act, contrary to the constitution, is not 
law : if the latter part be true, then writ- 
ten constitutions are absurd attempts, on 
the part of the people, to limit a power, 
in its own nature, illimitable. 

"Certainly, all those who have framed 
written constitutions contemplate them as 
forming the fundamental and paramount 
law of the nation, and consequently, the 
theory of every such government must 
be, that an act of the legislature, repug- 
nant to the constitution, is void. This 
theory is essentially attached to a written 
constitution, and is, consequently, to be 
considered by this court as one of the fun- 
damental principles of our society." 

And of the same opinion was Montesquieu 
who gave the high authority of the Esprit des 
Lois to the declaration that 

"There is no liberty if the power of 
judging be not separate from the legisla- 



66 EXPERIMENTS AND ESSENTIALS 

tive and executive powers; were it joined 
with the legislative the life and liberty 
of the subject would be exposed to arbi- 
trary control." 

It is to be observed that the wit of man has 
not yet devised any better way of reaching a 
just conclusion as to whether a statute does or 
does not conflict with a constitutional limi- 
tation upon legislative power than the sub- 
mission of the question to an independent and 
impartial court. The courts are not parties to 
the transactions upon which they pass. They 
are withdrawn by the conditions of their office 
from participation in business and political 
affairs out of which litigations arise. Their 
action is free from the chief dangers which 
threaten the undue extension of power, be- 
cause, as Hamilton points out in The Fed- 
eralist, they are the weakest branch of 
government: they neither hold the purse, as 
does the legislature, nor the sword, as does the 
executive. During all our history they have 



ESSENTIALS 67 

commanded and deserved the respect and con- 
fidence of the people. General acceptance of 
their conclusions has been the chief agency in 
preventing here the discord and strife which 
afflict so many lands, and in preserving peace 
and order and respect for law. 

Indeed in the effort to emasculate represen- 
tative government to which I have already re- 
ferred, the people of the experimenting states 
have greatly increased their reliance upon the 
courts. Every new constitution with detailed 
orders to the legislature is a forcible assertion 
that the people will not trust legislatures to 
determine the extent of their own powers, but 
will trust the courts. 

Two of the new proposals in government, 
which have been much discussed, directly re- 
late to this system of constitutional limitations 
made effective through the judgment of the 
courts. One is the proposal for the Recall of 
Judges, and the other for the Popular Review 
of Decisions, sometimes spoken of as the 
Recall of Decisions, 



68 EXPERIMENTS AND ESSENTIALS 

Under the first of these proposals, if a speci- 
fied proportion of the voters are dissatisfied 
with a judge's decision they are empowered to 
require that at the next election, or at a special 
election called for that purpose, the question 
shall be presented to the electors whether the 
judge shall be permitted to continue in office 
or some other specified person shall be substi- 
tuted in his place. This ordeal differs radi- 
cally from the popular judgment which a judge 
is called upon to meet at the end of his term 
of office, however short that may be, because 
when his term has expired he is judged upon 
his general course of conduct while he has 
been in office and stands or falls upon that as 
a whole. Under the Recall a judge may be 
brought to the bar of public judgment imme- 
diately upon the rendering of a particular de- 
cision which excites public interest and he 
will be subject to punishment if that decision 
is unpopular. Judges will naturally be afraid 
to render unpopular decisions. They will hear 
and decide cases with a stronger incentive to 



ESSENTIALS 69 

avoid condemnation themselves than to do 
justice to the Htigant or the accused. Instead 
of independent and courageous judges we 
shall have timid and time-serving judges. 
That highest duty of the judicial power to 
extend the protection of the law to the weak, 
the friendless, the unpopular, will in a great 
measure fail. Indirectly the effect will be to 
prevent the enforcement of the essential 
limitations upon official power because the 
judges will be afraid to declare that there is 
a violation when the violation is to accomplish 
some popular object. 

The Recall of Decisions aims directly at the 
same result. Under such an arrangement, if 
the courts have found a particular law to be 
a violation of one of the fundamental rules of 
limitation prescribed in the constitution, and 
the public feeling of the time is in favor of 
disregarding that limitation in that case, an 
election is to be held, and if the people in the 
election vote that the law shall stand, it is to 
stand, although it be a violation of the consti- 



70 EXPERIMENTS AND ESSENTIALS 

tution; that is to say, if at any time a majority 
of the voters of a state (and ultimately the 
same would be true of the people of the United 
States) choose not to be bound in any par- 
ticular case by the rule of right conduct which 
they have established for themselves, they are 
not to be bound. This is sometimes spoken of 
as a Popular Reversal of the Decisions of 
Courts. That I take to be an incorrect view. 
The power which would be exercised by the 
people under such an arrangement would be, 
not judicial, but legislative. The action would 
not be a decision that the court was wrong in 
finding a law unconstitutional, but it would be 
making a law valid which was invalid before 
because unconstitutional. In such an election 
the majority of the voters would make a law 
where no law had existed before; and they 
would make that law in violation of the rules 
of conduct by which the people themselves had 
solemnly declared they ought to be bound. 
The exercise of such a power, if it is to exist, 
cannot be limited to the particular cases which 



ESSENTIALS 71 

you or I or any man now living may have in 
mind. It must be general. If it can be exer- 
cised at all it can and will be exercised by the 
majority whenever they wish to exercise it. 
If it can be employed to make a Workmen's 
Compensation Act in such terms as to violate 
the constitution, it can be employed to prohibit 
the worship of an unpopular religious sect, or 
to take away the property of an unpopular rich 
man without compensation, or to prohibit 
freedom of speech and of the press in oppo- 
sition to prevailing opinion, or to deprive one 
accused of crime of a fair trial when he has 
been condemned already by the newspapers. 
In every case the question whether the ma- 
jority shall be bound by those general princi- 
ples of action which the people have prescribed 
for themselves will be determined in that case 
by the will of the majority, and therefore in 
no case will the majority be bound except by 
its own will at the time. 

The exercise of such a power would strike 
at the very foundation of our system of gov- 



^2 EXPERIMENTS AND ESSENTIALS 

ernment. It would be a reversion to the sys- 
tem of the ancient republics where the state 
was everything and the individual nothing ex- 
cept as a part of the state, and where liberty 
perished. It would be a repudiation of the 
fundamental principle of Anglo-Saxon liberty 
which we inherit and maintain, for it is the 
very soul of our political institutions that they 
protect the individual against the majority. 
"All men," says the Declaration, ''are endowed 
by their Creator with inalienable rights. Gov- 
ernments are instituted to secure these rights." 
The rights are not derived from any majority. 
They are not disposable by any majority. 
They are superior to all majorities. The weak- 
est minority, the most despised sect, exist by 
their own right. The most friendless and 
lonely human being on American soil holds 
his right to life and liberty and the pursuit of 
happiness, and all that goes to make them up, 
by title indefeasible against the world, and it 
is the glory of American self-government that 
by the limitations of the constitution we have 



ESSENTIALS 73 

protected that right against even ourselves. 
That protection cannot be continued and 
that right cannot be maintained, except by 
jealously preserving at all times and under all 
circumstances the rule of principle which is 
eternal over the will of majorities which shift 
and pass away. 

Democratic absolutism is just as repulsive, 
and history has shown it to be just as fatal, to 
the rights of individual manhood as is mon- 
archical absolutism. 

But it is not necessary to violate the rules 
of action which we have established for our- 
selves in the constitution in order to deal by 
law with the new conditions of the time, for 
these rules of action are themselves subject to 
popular control. If the rules are so stated 
that they are thought to prevent the doing of 
something which is not contrary to the prin- 
ciples of liberty but demanded by them, the 
true remedy is to be found in reconsidering 
what the rules ought to be and, if need be, in 
restating them so that they will give more 



74 EXPERIMENTS AND ESSENTIALS 

complete effect to the principles they are de- 
signed to enforce. If, as I believe, there ought 
to be in my own state, for example, a Work- 
man's Compensation Act to supersede the 
present unsatisfactory system of accident liti- 
gation, and if the constitution forbids such a 
laW' — which I very much doubt — the true rem- 
edy is not to cast to the winds all systematic 
self-restraint and to inaugurate a new system 
of doing whatever we please whenever we 
please, unrestrained by declared rules of con- 
duct; but it is to follow the orderly and ordi- 
nary method of amending the constitution so 
that the rule protecting the right to property 
shall not be so broadly stated as to prevent 
legislation which the principle underlying the 
rule demands. 

The difference between the proposed prac- 
tice of overriding the constitution by a vote 
and amending the constitution is vital. It is 
the difference between breaking a rule and 
making a rule; between acting without any 
rule in a particular case and determining what 



ESSENTIALS 



75 



ought to be the rule of action applicable to 
all cases. 

Our legislatures frequently try to evade 
constitutional provisions, and doubtless popu- 
lar majorities seeking specific objects would 
vote the same way, but set the same people to 
consider what the fundamental law ought to 
be, and confront them with the question 
whether they will abandon in general the prin- 
ciples and the practical rules of conduct accord- 
ing to principles, upon which our government 
rests, and they will instantly refuse. While 
their minds are consciously and avowedly ad- 
dressed to that subject they will stand firm for 
the general rules that will protect them and 
their children against oppression and usur- 
pation, and they will change those rules only if 
need be to make them enforce more perfectly 
the principles which underlie them. 

Communities, like individuals, will declare 
for what they believe to be just and right; but 
communities, like individuals, can be led away 
from their principles step by step under the 



76 EXPERIMENTS AND ESSENTIALS 

temptations of specific desires and supposed 
expediencies until the principles are a dead let- 
ter and allegiance to them is a mere sham. 

And that is the way in which popular gov- 
ernments lose their vitality and perish. 

The Roman consuls derived their power 
from the people and were responsible to the 
people; but Rome went on pretending that the 
emperors and their servants were consuls long 
after the Praetorians were the only source of 
power and the only power exercised was that 
of irresponsible despotism. 

A number of countries have copied our con- 
stitution coupled with a provision that the con- 
stitutional guarantees may be suspended in 
case of necessity. We are all familiar with the 
result. The guarantees of liberty and justice 
and order have been forgotten: the govern- 
ment is dictatorship and the popular will is 
expressed only by revolution. 

Nor, so far as our national system is con- 
cerned has there yet appeared any reason to 
suppose that suitable laws to meet the new 



ESSENTIALS 77 

conditions cannot be enacted without either 
overriding or amending the constitution. The 
liberty of contract and the right of private 
property which are protected by the Hmitations 
of the constitution are held subject to the 
police power of government to pass and en- 
force laws for the protection of the public 
health, public morals, and public safety. The 
scope and character of the regulations required 
to accomplish these objects vary as the con- 
ditions of life in the country vary. Many in- 
terferences with contract and with property 
which would have been unjustifiable a century 
ago are demanded by the conditions which 
exist now and are permissible without violat- 
ing any constitutional limitation. What will 
promote these objects the legislative power 
decides with large discretion, and the courts 
have no authority to review the exercise of 
that discretion. It is only when laws are 
passed under color of the police power and 
having no real or substantial relation to the 
purposes for which the power exists, that 



y8 EXPERIMENTS AND ESSENTIALS 

the courts can refuse to give them effect. 
By a multitude of judicial decisions in re- 
cent years our courts have sustained the exer- 
cise of this vast and progressive power in 
dealing with the new conditions of life under 
a great variety of circumstances. The prin- 
cipal difficulty in sustaining the exercise of the 
power has been caused ordinarily by the fact 
that carelessly or ignorantly drawn statutes 
either have failed to exhibit the true relation 
between the regulation proposed and the ob- 
ject sought, or have gone farther than the 
attainment of the legitimate object justified. 
A very good illustration of this is to be found 
in the Federal Employer's Liability Act which 
was carelessly drawn and passed by Congress 
in 1906 and was declared unconstitutional by 
the Supreme Court, but which was carefully 
drawn and passed by Congress in 1908 and 
was declared constitutional by the same court. 
Insistence upon hasty and violent methods 
rather than orderly and deliberate methods is 
really a result of impatience with the slow 



ESSENTIALS 7q 

methods of true progress in popular govern- 
ment. We should probably make little prog- 
ress were there not in every generation some 
men who, realizing evils, are eager for reform, 
impatient of delay, indignant at opposition, 
and intolerant of the long, slow processes by 
which the great body of the people may 
consider new proposals in all their relations, 
weigh their advantages and disadvantages, 
discuss their merits, and become educated 
either to their acceptance or rejection. Yet 
that is the method of progress in which no 
step, once taken, needs to be retraced; and it 
is the only way in which a democracy can 
avoid destroying its institutions by the impul- 
sive substitution of novel and attractive but 
impracticable expedients. 

The wisest of all the fathers of the Repub- 
lic has spoken, not for his own day alone but 
for all generations to come after him, in the 
solemn admonitions of the Farewell Address. 
It was to us that Washington spoke when he 
said: 



8o EXPERIMENTS AND ESSENTIALS 

''The basis of our political systems is 
the right of the people to make and to 
alter their constitutions of government; 
but the Constitution which at any time ex- 
ists, till changed by an explicit and au- 
thentic act of the whole people, is sacredly 
obligatory upon all. * * * Towards 
the preservation of your government, and 
the permanency of your present happy 
state, it is requisite, not only that you 
steadily discountenance irregular oppo- 
sitions to its acknowledged authority, but 
also that you resist with care the spirit of 
innovation upon its principles, however 
specious the pretexts. One method of 
assault may be to effect, in the forms of 
the Constitution, alterations which will 
impair the energy of the system, and thus 
to undermine what cannot be directly 
overthrown. In all the changes to which 
you may be invited, remember that time 
and habit are at least as necessary to fix 
the true character of governments as of 



ESSENTIALS 8l 

other human institutions; that experience 
is the surest standard by which to test the 
real tendency of the existing constitution 
of a country; that facihty in changes, 
upon the credit of mere hypothesis and 
opinion, exposes to perpetual changes, 
from the endless variety of hypothesis 
and opinion." 

While, in the nature of things, each gener- 
ation must assume the task of adapting the 
working of its government to new conditions 
of life as they arise, it would be the folly of 
ignorant conceit for any generation to assume 
that it can lightly and easily improve upon the 
work of the founders in those matters which 
are, by their nature, of universal application 
to the permanent relations of men in civil 

society. 

Religion, the philosophy of morals, the 
teaching of history, the experience of every 
human life, point to the same conclusion— that 
in the practical conduct of life the most diffi- 



82 EXPERIMENTS AND ESSENTIALS 

cult and the most necessary virtue is self- 
restraint. It is the first lesson of childhood; 
it is the quality for which great monarchs are 
most highly praised; the man who has it not 
is feared and shunned ; it is needed most where 
power is greatest; it is needed more by men 
acting in a mass than by individuals, because 
men in the mass are more irresponsible and 
difficult of control than individuals. The 
makers of our constitution, wise and earnest 
students of history and of life, discerned the 
great truth that self-restraint is the supreme 
necessity and the supreme virtue of a democ- 
racy. The people of the United States have 
exercised that virtue by the establishment of 
rules of right action in what we call the limi- 
tations of the constitution, and until this day 
they have rigidly observed those rules. The 
general judgment of students of government 
is that the success and permanency of the 
American system of government are due to the 
establishment and observance of such general 
rules of conduct. Let us change and adapt our 



ESSENTIALS 8^ 

laws as the shifting conditions of the times re- 
quire, but let us never abandon or weaken this 
fundamental and essential characteristic of our 
ordered liberty. 



^UL 1 J9i8 



\ 



